United States v. Green , 698 F.3d 48 ( 2012 )

United States Court of Appeals
For the First Circuit
No. 11-2157
UNITED STATES OF AMERICA,
Appellee,
v.
JUSTIN GREEN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. George A. O’Toole, U.S. District Judge]
Before
Howard, Stahl, and Lipez,
Circuit Judges.
Fred Haddad for appellant.
Linda M. Ricci, Assistant United States Attorney, with whom
Carmen M. Ortiz, United States Attorney, was on brief for appellee.
October 31, 2012
STAHL, Circuit Judge. A jury convicted defendant-
appellant Justin Green of participating in an oxycodone
distribution conspiracy, and he received a sentence of 210 months.
On appeal, he raises several challenges to his conviction and
sentence, the most important of which is that the district court
erred in refusing to suppress evidence that Drug Enforcement
Administration (DEA) agents obtained from Green’s cellular
telephone, without a warrant, two weeks after they seized the
phone. We find that any error was harmless and therefore leave for
another day the question of whether the agents’ activity was lawful
under the Fourth Amendment. Because Green’s other claims also lack
merit, we affirm.
I. Facts & Background
Given that this appeal follows a conviction, we recount
the facts in the light most favorable to the verdict. United
States v. Poulin, 631 F.3d 17, 18 (1st Cir. 2011).
In the fall of 2008, the DEA began investigating a
suspected oxycodone trafficking operation in and around Fall River,
Massachusetts. With the help of a cooperating witness, the DEA
identified Gilberto Aguiar as one of the participants and received
court authorization to intercept calls and text messages on
Aguiar’s cell phone, as well as on the phones of Aguiar’s suspected
supplier, Dimas Almeida, and Almeida’s suspected supplier, Aaron
Tripp. The DEA agents intercepted calls between Tripp and a man
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named Mark Carrolton, which revealed that Tripp was planning to
travel to Florida to buy several hundred thousand dollars’ worth of
pills. Carrolton arranged for an individual named “J” or “Justin”
(later identified as the defendant, Justin Green) to supply Tripp
with 30,000 30-milligram oxycodone pills and 2,500 80-milligram
pills. Carrolton also arranged for a second supplier named “Twin”
to provide Tripp with 500 80-milligram oxycodone pills.
Tripp’s trip to Florida was delayed for a week or so, and
on May 1, 2009, Carrolton received a text message from Green
stating the following: “I cant [sic] hold these for any longer. My
people are backed up and jumping down my throat. Im [sic] going to
have [sic] get rid of them to someone else if he isnt [sic] @erious
[sic].” Carrolton forwarded that message to Tripp, warning Tripp
that he could not “buy much more time” and telling him to read the
forwarded message from “J.” During a conversation with Tripp that
same day, Carrolton confirmed that Tripp was bringing enough cash
(at least $300,000 or $350,000) to Florida for the transaction and,
at the end of the conversation, told Tripp that he was “going to
call Justin right now.” Carrolton then immediately placed six
calls to Green’s cell phone number.
On May 5, 2009, on his way down to Florida, Tripp was
pulled over by local law enforcement officers in South Carolina,
who seized $396,000 in cash from Tripp as part of a search of his
vehicle. Later that day, the DEA agents intercepted a call from
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Tripp to Carrolton, in which Tripp reported what had happened and
told Carrolton to “ditch” his phone. Carrolton responded that he
would “call ‘J’” and talk to Tripp later. Carrolton then made
three attempts to reach Green’s cell phone number. Carrolton also
sent a text message to the same number that night.
On May 6, 2009, the DEA agents persuaded Tripp to
cooperate with them. At the agents’ direction, Tripp placed
several (recorded) calls to Carrolton and told Carrolton that he
would return to Massachusetts for more money and then meet
Carrolton and Green in Florida to complete the transaction as
planned.
On May 7, 2009, at approximately 7:30 p.m., Tripp once
again called Carrolton, to finalize the plans for the drug deal.
Shortly thereafter, Carrolton and Green arrived at a Holiday Inn
Express in Fort Lauderdale, where the DEA agents had arranged for
Tripp to rent a room. When Carrolton and Green (who arrived
separately) knocked on Tripp’s hotel room door, the DEA agents
opened the door and identified themselves. Green ran down the
hallway, but the agents stopped him and arrested him. The agents
also arrested Carrolton.
At the time of the arrests, the DEA agents seized a cell
phone, backpack, and two bags of pills from Carrolton (containing
748 30-milligram oxycodone pills and 442 80-milligram oxycodone
pills). Carrolton later testified at trial that “Twin” had
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supplied some of those pills and that the rest were from Green.
The agents also seized two cell phones from Green: a black MetroPCS
Samsung phone and a Blackberry device.
Two weeks after Green’s arrest, on May 21, 2009, DEA
Special Agent Carl Rideout, by then back in Massachusetts, removed
the back outside casing and battery from each of Green’s cell
phones and retrieved the International Mobile Subscriber Identity
(IMSI) number from each.1 Agent Rideout did not have a warrant.
According to the government, the “DEA agents used the IMSI numbers
to obtain toll and subscriber information (including the telephone
numbers) for the cellular telephones. Agents learned, among other
things, that the telephone number associated with Green’s MetroPCS
black Samsung cellular telephone was (954) 245-2759.”
In June 2009, Green, Carrolton, Tripp, and others were
charged with conspiring to possess with intent to distribute and to
distribute oxycodone, a Schedule II controlled substance, in
violation of 21 U.S.C. § 846. On March 31, 2010, Green filed a
motion to suppress the cell phones and all evidence obtained from
them, and on October 15, 2010, the district court heard oral
argument on that motion. Shortly thereafter, on November 1, 2010,
Agent Rideout obtained consent from Carrolton to activate
1
The district court described an IMSI number as a “unique
identifying number[] assigned to the computer chip[] installed on”
a cell phone. United States v. Green, No. 09–10183–GAO, 2011 WL
86681, at *2 (D. Mass. Jan. 11, 2011). The number is also printed
on the inside of the phone itself.
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Carrolton’s cell phone (seized from him at the scene) and retrieve
Green’s number from the phone’s electronic address book, listed
under the name “JSTN.” That number matched the one that the DEA
had obtained using Green’s IMSI number. That same day, the
government filed a supplemental response to Green’s motion to
suppress, arguing that the “inevitable discovery” doctrine applied,
see Nix v. Williams, 467 U.S. 431, 446–47 (1984), because the DEA
would have obtained Green’s phone number through the consensual
search of Carrolton’s phone and then, using that number, would have
subpoenaed Green’s toll records.2 On January 11, 2011, the
district court denied Green’s motion to suppress, finding that the
retrieval of his IMSI number did not constitute a “search” within
the meaning of the Fourth Amendment. See United States v. Green,
No. 09–10183–GAO, 2011 WL 86681, at *3-4 (D. Mass. Jan. 11, 2011).
At trial, Carrolton and Tripp testified against Green, as
did a man named William Conda, who had obtained oxycodone from
Green in the past and who introduced Green to Carrolton. After a
four-day trial, the jury convicted Green. The district court
imposed a below-guideline sentence of 210 months in prison and
three years of supervised release. This appeal followed.
2
Toll records, which a telephone company compiles, detail,
among other things, the phone numbers a subscriber has called and
received calls from in a given month.
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II. Analysis
Green raises four claims on appeal. First, he argues
that the district court should have granted his motion to suppress,
because the DEA agents’ retrieval of his IMSI number from his cell
phone constituted a Fourth Amendment search. Second, he contends
that the district court violated Federal Rules of Evidence 403 and
404(b) by admitting the testimony of William Conda, because Conda
discussed Green’s prior bad acts that fell outside the time period
of the charged conspiracy. Third, Green challenges the sufficiency
of the evidence against him. Fourth, he urges us to find clear
error in the district court’s drug quantity calculation. We
address each claim in turn.
A. The motion to suppress
In the typical case in which a defendant challenges the
denial of a motion to suppress, we review the district court’s
factual findings for clear error and its legal conclusions de novo.
United States v. Symonevich, 688 F.3d 12, 18 (1st Cir. 2012).
Here, however, we need not delve into the district court’s
decision, because we find that there was ample evidence to convict
Green even without the information that the DEA agents obtained
from his cell phone after his arrest.3
3
Though Green argued in his brief on appeal that the DEA
agents did not have probable cause to arrest him, and thus that his
cell phones were not seized incident to a lawful arrest, he
conceded at oral argument that what occurred on May 7, 2009 was
indeed an arrest, supported by probable cause. See United States
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The two cell phones seized from Green at the time of his
arrest were a black MetroPCS Samsung phone and a BlackBerry device.
Two weeks later, after returning to Massachusetts, Agent Rideout
opened the back of each phone, removed the battery, and obtained
each phone’s IMSI number. The IMSI number of the Samsung phone was
visible on the phone after the battery was removed, and the IMSI
number of the Blackberry phone was on a card inserted into a slot
where the battery had been. Because the government does not appear
to have introduced any evidence at trial that it acquired using the
Blackberry’s IMSI number, we focus on the retrieval of the IMSI
number from the Samsung device. The DEA agents used that IMSI
number to determine that (954) 245-2759 was the phone number
associated with the phone, to obtain Green’s toll records from
MetroPCS, and to obtain what the government has described as other
“subscriber information.” The government’s brief does not make
clear what that other subscriber information included, nor has
either party provided us with the trial exhibit that might answer
v. Robinson, 414 U.S. 218, 235 (1973) (“A custodial arrest of a
suspect based on probable cause is a reasonable intrusion under the
Fourth Amendment; that intrusion being lawful, a search incident to
the arrest requires no additional justification.”). In any event,
even if Green had not conceded the point, we would have found that
the DEA agents relied on “reasonably trustworthy facts and
circumstances” and had “information upon which a reasonably prudent
person would believe the suspect had committed or was committing a
crime” when they arrested Green. United States v. Young, 105 F.3d
1, 6 (1st Cir. 1997). The seizure of Green’s cell phones therefore
did not violate the Fourth Amendment. See Robinson, 414 U.S. at
235.
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that question. When asked, at oral argument, exactly what
information can be gleaned about a subscriber using his IMSI
number, neither party was able to provide an answer.
The question Green raises -- whether the DEA agents’
retrieval of his IMSI number constituted a search within the
meaning of the Fourth Amendment4 -- is not, in our view, an easy
one. It implicates an important and developing area of Fourth
Amendment law: the extent of the privacy interest that an
individual has in his cell phone and cellular communications. See,
e.g., United States v. Flores-Lopez, 670 F.3d 803 (7th Cir. 2012);
United States v. Finley, 477 F.3d 250, 258-60 (5th Cir. 2007); cf.
United States v. Jones, 132 S. Ct. 945, 957 (2012) (Sotomayor, J.,
concurring). But we find this case to be the wrong vehicle for
exploring those novel issues, both because the record is
insufficiently developed and because, even assuming that a Fourth
Amendment search occurred here, any error was harmless.
4
Green also argues that, if a Fourth Amendment search did
occur here, it was not authorized by the search-incident-to-arrest
exception, see Robinson, 414 U.S. at 235, given the two-week delay
between the seizure of his cell phone and the retrieval of his IMSI
number. It is worth noting, however, that the government would
bear the burden of invoking any exception to the warrant
requirement, see Coolidge v. New Hampshire, 403 U.S. 443, 455
(1971), and it has not argued in its brief on appeal that the
search-incident-to-arrest exception applies here. The government
claims only that the retrieval of Green’s IMSI number did not
constitute a search, because an individual does not have a
reasonable expectation of privacy either in his IMSI number, which
is shared with the telephone company, or in the inside casing of
his cell phone. See Katz v. United States, 389 U.S. 347, 361
(1967) (Harlan, J., concurring).
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The admission of evidence obtained in violation of the
Fourth Amendment is harmless if the government can “prove beyond a
reasonable doubt that the error complained of did not contribute to
the verdict obtained.” Chapman v. California, 386 U.S. 18, 24
(1967); see also United States v. Salimonu, 182 F.3d 63, 71 (1st
Cir. 1999). The government urges us to apply a more lenient
standard, claiming that the improper admission of evidence is
harmless if it is “highly probable that the error did not influence
the verdict.” United States v. Flores-de-Jesús, 569 F.3d 8, 27
(1st Cir. 2009) (citation and internal quotation marks omitted).
But, as we recently reiterated, “[t]here are two barometers for
measuring harmless error in a criminal case,” and the stricter
harmless-beyond-a-reasonable-doubt standard applies “to issues of
constitutional dimension,” like the one presented here. United
States v. Sasso, 695 F.3d 25, 29 (1st Cir. 2012). Despite the fact
that the government has articulated the wrong standard, however, it
has satisfied the correct one.
The government maintains, and Green does not dispute,
that if the district court had granted Green’s motion to suppress,
the only evidence that would not have been admitted at trial was
that the particular Samsung cell phone that the agents seized from
him on May 7, 2009 was assigned telephone number (954) 245-2759.
Though the DEA agents did also obtain Green’s toll records using
his IMSI number, the government apparently did not use those
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records at trial. The government submitted a chart summarizing
Carrolton’s telephone contacts with Green, but that chart was based
entirely on Carrolton’s toll records, obtained with his consent.
The other piece of evidence that the DEA agents obtained
using Green’s IMSI number was that his telephone number was (954)
245-2759, but that evidence would still have come in at trial,
through Carrolton’s testimony and information obtained from
Carrolton’s phone with his consent.5 Perhaps more importantly,
Green stipulated at trial that (954) 245-2759 was “the mobile
telephone number assigned to a telephone used by Justin Green.”
Furthermore, there was a great deal of other evidence
connecting Green to the conspiracy. That evidence, discussed above
and at more length below, included the trial testimony of co-
conspirators Carrolton and Tripp, the intercepted wire
communications between and among Green’s co-conspirators, the fact
that Green arrived at the Holiday Inn Express on May 7, 2009 for
5
This included Carrolton’s toll records and the fact that his
cell phone address book listed number (954) 245-2759 under the name
“JSTN.” The government suggests that the evidence obtained using
Carrolton’s cell phone thus provided an “independent source” for
the information contained in Green’s toll records, see Murray v.
United States, 487 U.S. 533, 537 (1988), or that the DEA would have
“inevitably discovered” those toll records by issuing a subpoena to
MetroPCS once Carrolton gave the agents Green’s cell phone number,
see Nix, 467 U.S. at 446–47. However, the district court record
indicates that the Samsung phone was a prepaid device and that the
MetroPCS account did not reflect Green’s own name as the
subscriber. Thus, as we understand it, only Green’s IMSI number
allowed the government to definitively link Green to the specific
Samsung phone seized from him on May 7, 2009.
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the expected drug transaction, and the fact that Green fled when
the DEA agents confronted him.
We cannot imagine that the jury would have rendered a
different verdict in the absence of the one, relatively minor,
piece of evidence derived exclusively from the retrieval of Green’s
IMSI number: namely, that the particular phone he was carrying on
the day he was arrested was assigned telephone number (954)
245-2759. We therefore find beyond a reasonable doubt that any
error here did not contribute to the verdict, see Chapman, 386 U.S.
at 24, and we leave the Fourth Amendment question for another day.
B. The testimony of William Conda
Green’s second claim is that the district court should
not have admitted the testimony of William Conda, who had prior
drug dealings with Green leading up to Green’s participation in the
conspiracy, because Conda’s testimony concerned events that
occurred before the time period alleged in the indictment and thus
implicated Green’s “prior bad acts” under Federal Rule of Evidence
404(b). Green also contends that the testimony was unfairly
prejudicial. See Fed. R. Evid. 403. We review Green’s preserved
evidentiary challenge for abuse of discretion. United States v.
Mare, 668 F.3d 35, 38 (1st Cir. 2012).
The indictment in this case alleged that the conspiracy
to distribute oxycodone took place “[b]eginning on an unknown date
but at least by in or about October, 2008, and continuing
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thereafter until in or about May, 2009.” Conda testified to events
that seem to have occurred from October 2004 through 2006 or 2007,
arguably before the time period explicitly alleged in the
indictment.6 The essence of Conda’s testimony was that: a man
named Bill introduced him to Green; Conda obtained oxycodone pills
from Green; Conda met Carrolton through work in 2006 and began
taking oxycodone pills with Carrolton after work; Conda acted as a
middleman by obtaining pills for himself and Carrolton from Green;
and Conda eventually introduced Carrolton to Green as his source
for oxycodone.
Under Rule 404(b), “[e]vidence of a crime, wrong, or
other act is not admissible to prove a person’s character in order
to show that on a particular occasion the person acted in
accordance with the character,” but it “may be admissible for
another purpose, such as proving motive, opportunity, intent,
preparation, plan, knowledge, identity, absence of mistake, or lack
of accident.” Fed. R. Evid. 404(b). “The prohibition against
‘other acts’ evidence typically refers to evidence that is
extrinsic to the crime charged and introduced for the purpose of
showing propensity.” United States v. Gobbi, 471 F.3d 302, 311
(1st Cir. 2006). The district court found that Conda’s testimony
6
We say “arguably” because the indictment did include the
“[b]eginning on an unknown date” language, but the government has
not invoked that language to argue that the acts about which Conda
testified fell within the time frame of the indictment.
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did not implicate Rule 404(b), because it was, in the court’s
words, “evidence tending to establish the charged conspiracy.” See
United States v. Villarman-Oviedo, 325 F.3d 1, 11 (1st Cir. 2003)
(holding that where evidence is not of “other crimes, wrongs, or
acts” but is intrinsic to the crime charged, “Rule 404(b) is really
not implicated at all”).
We can bypass the question of whether the “other acts” at
issue here were intrinsic or extrinsic. They were, in any event,
admissible under Rule 404(b), so any error was harmless. We have
repeatedly held that, in a conspiracy case, “evidence of other bad
acts . . . can be admitted to explain the background, formation,
and development of the illegal relationship, and, more
specifically, to help the jury understand the basis for the
co-conspirators’ relationship of mutual trust.” United States v.
Escobar-de Jesus, 187 F.3d 148, 169 (1st Cir. 1999) (internal
citations omitted); see also United States v. Balthazard, 360 F.3d
309, 317-18 (1st Cir. 2004) (finding evidence of a drug transaction
admissible where the government failed to prove that the
transaction occurred during the time frame of the conspiracy,
because it was evidence of the “background, formation, and
development of the illegal relationship” (citation and internal
quotation marks omitted)). Green has articulated no reason why
that rule should not apply to Conda’s testimony.
-14-
Even if evidence is admissible under Rule 404(b),
however, the district court must exclude it “if its probative value
is substantially outweighed” by a “danger of unfair prejudice.”
Fed. R. Evid. 403; see also United States v. Varoudakis, 233 F.3d
113, 121 (1st Cir. 2000) (“Prior bad act evidence that surmounts
the bar of Rule 404(b) may still be inadmissible under Rule 403.”).
Green’s Rule 403 claim is that Conda’s testimony was unfairly
prejudicial because it “paint[ed] [Green] as an oxycodone dealer,
with such proclivities.” But there was ample other evidence from
which the jury could reasonably have concluded that Green was,
indeed, an oxycodone dealer, and we thus fail to see how Conda’s
testimony had any “undue tendency to suggest decision on an
improper basis.” Fed. R. Evid. 403 advisory committee’s note.
This is not the kind of rare and “extraordinarily compelling” case
in which we would “reverse a district court’s on-the-spot judgment
concerning the relative weighing of probative value and unfair
effect.” United States v. Li, 206 F.3d 78, 84-85 (1st Cir. 2000)
(citation and internal quotation marks omitted). There was no
abuse of discretion. See Mare, 668 F.3d at 38.
C. The sufficiency of the evidence
Green’s third claim is that the district court erred in
denying his motion for judgment of acquittal. See Fed. R. Crim. P.
29. He argues, as he did before the district court, that the
evidence was insufficient to establish that he was a member of the
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charged conspiracy and instead proved only that he was part of a
buyer-seller relationship with Tripp and Carrolton. He emphasizes
that he was never captured on a wiretap or observed by law
enforcement until the day of his arrest, that Tripp was unable to
pick him out of a lineup, that he had no drugs on him when he
arrived at the Holiday Inn Express, and that at least one other
dealer, “Twin,” was supplying many of the oxycodone pills for the
distribution conspiracy. We review Green’s challenge to the
sufficiency of the evidence de novo, considering that evidence in
the light most favorable to the verdict. Symonevich, 688 F.3d at
23. “A reversal is warranted only where no rational factfinder
could have concluded that the evidence presented at trial, together
with all reasonable inferences, established each element of the
crime beyond a reasonable doubt.” Id.
To support its conspiracy charge against Green, the
government was required to prove beyond a reasonable doubt that:
(1) a conspiracy existed; (2) Green knew of the conspiracy; and
(3) Green voluntarily participated in the conspiracy.7 United
States v. Díaz, 670 F.3d 332, 347 (1st Cir. 2012). The government
7
In a curious footnote in its brief on appeal, the government
incorrectly claims that it did not have to show that Green had
knowledge of the existence of the conspiracy or that he voluntarily
joined it. Those are two of the three fundamental elements of a
conspiracy charge. See, e.g., United States v. Cortés-Cabán, 691
F.3d 1, 13 (1st Cir. 2012); Symonevich, 688 F.3d at 23; United
States v. Díaz, 670 F.3d 332, 347 (1st Cir. 2012); United States v.
Dellosantos, 649 F.3d 109, 116 (1st Cir. 2011).
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could meet that burden with direct or circumstantial evidence. Id.
And while “knowledge of the broader conspiracy’s existence is
critical,” the government did not have to prove that Green had
“knowledge of every other participant, or of the details of the
conspiracy.” United States v. Franco-Santiago, 681 F.3d 1, 9 (1st
Cir. 2012) (citations and internal quotation marks omitted). The
evidence against Green was more than sufficient; we recount just
some of it here.
First, Conda’s testimony detailed the formation of the
conspiracy, describing how Carrolton met, and began obtaining
oxycodone from, Green.
Second, Tripp testified that, during the time period
charged in the indictment, he repeatedly traveled from New England
to Florida to obtain escalating amounts of oxycodone pills from
Green. Carrolton acted as the middle man, but Tripp met Green
during those transactions and testified that he was aware that
Green was the source of the oxycodone pills. Tripp testified that
Green supplied him with “a few hundred” pills of oxycodone at a
time and that, overall, he purchased between 100,000 and 125,000
pills from Green over the course of the conspiracy. Tripp then
sold about ninety-five percent of the pills to Dimas Almeida, who
was involved in the drug trade in Massachusetts.
Third, Carrolton testified that somewhere between ninety-
five and ninety-eight percent of the pills that Tripp obtained
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through Carrolton came from Green. Those transactions occurred
about a dozen times between early 2008 and May 2009. Carrolton
testified that Tripp would fly to Florida to obtain the pills when
the deals involved less than $150,000, but on at least three
occasions, Tripp purchased more than $150,000 worth of pills from
Carrolton and Green and thus drove to Florida in order to be able
to conceal the money. According to Carrolton, Green set the price
for the pills and was present for the majority of the transactions
with Tripp.
Fourth, Green arrived at the Holiday Inn Express on May
7, 2009 for what Carrolton and Tripp testified was a planned drug
transaction and fled when the DEA agents identified themselves.
Carrolton’s toll records and the intercepted wire communications
between Green’s co-conspirators provided further evidence of
Green’s participation in the oxycodone distribution ring.
We have held that “[t]he testimony of a single witness
can be enough to support the government’s case, and even the
uncorroborated testimony of an informant may suffice to establish
the facts underlying a defendant’s conviction.” United States v.
Meises, 645 F.3d 5, 12 (1st Cir. 2011) (internal citations and
quotation marks omitted). There was obviously much more than that
in this case. Green cites United States v. Moran, 984 F.2d 1299
(1st Cir. 1993), for the proposition that a mere buyer-seller
relationship between himself, Tripp, and Carrolton was insufficient
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to establish Green’s knowing and voluntary participation in the
conspiracy. But in Moran, we suggested that “[a] pattern of sales
for resale between the same persons, together with details
supplying a context for the relationship, might well support a
finding of conspiracy,” and that is exactly what the evidence
demonstrated here. Id. at 1303; see also United States v. Rivera-
Ruiz, 244 F.3d 263, 270 (1st Cir. 2001) (“[W]here advanced plans
are made regarding the sale of narcotics in wholesale quantities,
the participants in the transaction may be presumed to know that
they are part of a broader conspiracy.” (quoting United States v.
Harris, 8 F.3d 943, 946 (2d Cir. 1993))). A jury could reasonably
have concluded that Green participated in the charged conspiracy.
See Symonevich, 688 F.3d at 23.
D. The drug quantity calculation
Green’s final claim is that the district court erred in
calculating the drug quantity attributable to him as a result of
his participation in the conspiracy.8 Where, as here, a district
court’s drug quantity determination is fact-based, we review for
clear error. United States v. Bernier, 660 F.3d 543, 545 (1st Cir.
2011).
8
As part of his original appeal, Green also challenged the
district court’s calculation of his criminal history category,
which included two points for a Florida state conviction for which
Green then had an appeal pending. On July 27, 2012, after the
conviction was affirmed on appeal, Green filed a notice of mooted
issue with this court.
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The presentence report (PSR), using the trial testimony
of Carrolton and Tripp, held Green responsible for distributing at
least 100,000 oxycodone tablets. That amounted to 3,000 grams of
actual oxycodone, with a marijuana equivalency of 20,100 kilograms
and a resulting base offense level (BOL) of 36. See U.S.S.G.
§ 2D1.1. In his objections to the PSR and at sentencing, Green
urged the district court to reduce the amount to 748 30-milligram
pills and 442 80-milligram pills -- the number of pills confiscated
from Carrolton at the Holiday Inn Express on May 7, 2009 -- which
would have resulted in a BOL of 32. The court found the PSR’s
calculation to be a “reasoned approximation” and, indeed, “a
conservative one . . . with assumptions in a couple of instances in
the defendant’s favor.” We agree.
Tripp testified that he purchased between 100,000 and
125,000 pills from Green over the course of the conspiracy. The
PSR used the lower number and assumed that all of those were 30-
milligram pills, when in fact Tripp testified that Green also
supplied 80-milligram pills. Green claims that there were other
suppliers, but the only other supplier referenced was “Twin,” and
Carrolton testified that somewhere between ninety-five and ninety-
eight percent of the pills that Tripp obtained through Carrolton
came from Green. We have held that a district court, in making a
drug quantity determination, can “rely solely on the testimony of
cooperating government witnesses, provided such testimony exhibits
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some indicia of reliability or support from the record.” United
States v. Valdivia, 680 F.3d 33, 53 (1st Cir. 2012); see also
United States v. Rivera-Calderón, 578 F.3d 78, 100 (1st Cir. 2009).
Green has not challenged the drug quantity determination on the
ground that his co-conspirators’ testimony lacked adequate indicia
of reliability. There was no clear error. See Bernier, 660 F.3d
at 545.
III. Conclusion
For the foregoing reasons, we affirm.
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